Citation Nr: 19169171 Decision Date: 09/05/19 Archive Date: 09/05/19 DOCKET NO. 12-33 959 DATE: September 5, 2019 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to February 20, 2013, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to November 1978 and November 1981 to January 1991. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA). In a June 2018 decision, the Board entitlement to increased disability ratings for the left and right lower extremities. While the Veteran appealed the denial of an increased disability rating for a back disability to the Court, the Veteran did not challenge the denials of increased disability ratings for the bilateral lower extremities. In November 2018, the Court dismissed the issues of left and right lower extremity radiculopathy noting that the Veteran did not challenge the Board’s denial of his claims regarding these issues. As such, the Board does not have jurisdiction over the issues of left and right lower extremity radiculopathy. In June 2018, the Board also remanded the issue of entitlement to a total disability rating based on individual unemployability for further development. The requested development is still being complied with and therefore the Board does not currently have jurisdiction over it. Entitlement to a disability rating in excess of 10 percent for lumbosacral strain prior to February 20, 2013, and in excess of 20 percent thereafter, is remanded. The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances, with range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the United States Court of Appeals for Veterans Claims (Court) has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the March 2009, April 2015, and July 2017 VA examinations the Veteran indicated he experienced lumbar flare-ups. Specifically, in March 2009 he reported an “on and off” sharp pain and sore lower back, weakness, stiffness, limitations in walking and standing, pain causing him to awaken at night, and pain when walking, jogging, jumping, bending over, and lifting over 30 pounds; April 2015 he reported daily back pain with increased stiffness, significant limitations in ability to walk due pain, difficulty with dressing/hygiene tasks that require bending, and flareups are triggered by lifting more than 25 pounds; and July 2017 he reported that walking on uneven surfaces, bending, and lifting over 25 pounds can trigger an episode. While the Veteran’s statements suggest that his range of motion is further restricted during flare-ups, the examiners did not provide an opinion regarding flare-ups consistent with Sharp. Moreover, while pain was noted during range of motion testing during the examinations, the point at which pain started was not noted. Further, a letter from the Veteran’s private physician received in May 2013 indicated that he experienced functional loss associated with increasing pain due to activities such as prolonged sitting and standing, bending, and lifting; and equated his disability to the criteria including unfavorable ankylosis of the thoracolumbar spine or less than 30 degrees of extension of the thoracolumbar spine. However, the Board notes that the range of motion results listed in the letter are conflicting; in particular, the physician listed an extension of 20 degrees and a flexion of -30 degrees. These figures are inconsistent, as a -30 degree flexion would represent a 30 degree extension. See 38 C.F.R. § 4.71a, Plate V. As the March 2009, April 2015, and July 2017 VA examination do not reflect the considerations required by Correia and Sharp and the May 2013 private examiner’s range of motion results are inconsistent, remand for a new examination is required. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from September 2018 to the present. 2. After the development in (1) is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected lumbar spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Specifically, the examiner is requested to provide functional limitations and range of motion measurements, to include during flare-ups. To the extent possible, retrospective opinions on range motion for the period from April 2006 to February 2013 should also be provided. The examiner should request all necessary information for the Veteran to be able to provide this retrospective opinion. Range of motion measurements must be included for active and passive motion, in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. To the extent possible, estimates on range of motion within the above parameters should be provided for the period of time prior to February 20, 2013. If estimates are not possible, the reason for this should be provided. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, for both (i) the present time, and (ii) to the extent possible for the period from April 2006 to February 2013. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Further, the examiner must state whether there were any incapacitating episodes and if so, their frequency. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures, to include issuing a supplemental statement of the case for all issues. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Roe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.